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What to do and avoid to create a valid prenuptial agreement

by | Sep 15, 2017 | Property Division

Like most other states, New Jersey allows couples contemplating marriage to enter in to prenuptial agreements. These agreements, which, incidentally, can also be beneficial even to couples that have never been divorced and have no plans to divorce, help with important property division issues and can also be an important tool for estate planning.

To create a valid prenuptial agreement, one generally has to put it in writing and make sure it gets signed by both parties before they marry. Given the importance and sensitivity of prenuptial agreements, it is also important not to give any appearance that either spouse was put in to a situation where the agreement was take it or leave it.

For instance, each of the two people signing the agreement should either have his or her own attorney look at the agreement or should, at a minimum, be given a clear opportunity to seek out the advice of an attorney. This would also imply that each person needs ample time to consider the agreement and to read over it carefully, without being pressured by the other person or anyone else.

Even if the agreement as a whole is valid, it is also important to remember that courts will only enforce prenuptial agreements with respect to property issues. For example, a court will likely ignore any provision about who gets custody or who will pay child support or alimony. Instead, the court will just follow the applicable state law.

Finally, it is very important that the agreement is accurate and complete about what property each person owns and what debts each person owes. If information in a prenuptial agreement is not correct or current, a court may find the agreement invalid. Likewise, it is also important to remember that a court will, before enforcing a prenuptial agreement, consider whether the agreement calls for a fair division of property overall.